Coronavirus: The UK Government should afford the undocumented sufficient dignity in matters of life and death by regularising their status

  1. The Problem
  2. Leave to remain outside the Rules v Appendix FM and Paragraph 276ADE(1) applications
  3. Power of the Secretary of State to grant leave to remain outside the Rules
  4. Reasons for application
  5. Leave to remain outside the Rules- application process
  6. What the Home Office should do- problems with the current application process
  7. Duration of grant of leave to remain outside the Rules
  8. Conditions of grant of leave outside the Rules- No recourse to public funds
  9. No recourse to public funds- the way round this relying on the Discretionary Leave Policy
  10. Grant of leave to remain under the Discretionary Leave Policy
  11. Refusal or mere deferral on basis that circumstances are short lived
  12. Refusal and right of appeal
  13. Leave to remain- Article 3 medical condition cases
  14. Carers concession
  15. Applying to lift the no recourse to public funds condition

(1)THE PROBLEM

There are reports that a million undocumented migrants could go hungry because of the coronavirus pandemic – https://www.theguardian.com/world/2020/mar/23/million-undocumented-migrants-could-go-hungry-say-charities:

  • Approximately a million undocumented migrants living under the radar in the UK could be at risk not only of contracting Covid-19 but also of starvation because of the crisis created by the pandemic, charities have warned.
  • A report published in November 2019 by the Pew Research Center, a Washington thinktank, estimates that there could be between 800,000 and 1.2 million of these migrants currently in the UK.
  • Asylum seekers with an active claim receive meagre support from the Home Office – £37.75 per week – to buy food and other essentials and no-choice accommodation. However, the vast majority of those whose cases have been refused receive no support at all.
  • They are not allowed to work and survive thanks to a network of charities who provide survival packages of cooked meals at day centres, food parcels, secondhand clothing and supermarket vouchers. However, these charities have closed their day centres because of the pandemic.
  • Haringey Migrant Support Service has created an emergency fund for its homeless and destitute migrant visitors who they were previously supporting with food bank vouchers, food parcels and clothes. They were also providing lunch at their drop-in centres, which are not currently operating during the pandemic.
  • It is unclear whether an initiative due to be announced on Monday to house homeless people in empty hotels will include destitute migrants or only British street homeless people. The latter have access to housing and other benefits, the former do not”.

The UK government has the ability to regularise the immigration status of those in the UK without leave to remain, yet despite the pandemic and its devastating effects, the government remains silent, inactive on this particular issue.

Yes, suspending the eviction of failed claimants from asylum supported accommodation sounds like a whole lot of positive action but it actually isn’t.  It’s merely keeping the status quo. Where else were these people supposed to go? They are currently irremovable.

These are not concessions to the undocumented but something that should and would have been demanded by those representing those rendered vulnerable due to current circumstances.

As a practical matter, it was expected there would come a point when UKVI Liverpool would stop taking Further Submissions provided in person.  Until a few years ago, further submissions were sent by post to the Home Office. The government should not be applauded for instituting lodgement of submissions via a designated email address- they were bound to take a step back on in-person submissions, sooner rather than later. Where the government subsequently seeks once again to unnecessarily tighten up the procedure and revert to the position prior to 18 March 2020, there should be demands for justification of such action.

The current position includes extensions of visas to 31 May 2020 where leave expires between 24 January 2020 and 31 May 2020, if a person cannot leave the UK because of travel restrictions or self-isolation related to coronavirus (COVID-19).

For those that are applying to stay in the UK , current Home Office guidance states, “During these unique circumstances you’ll be able to apply from the UK to switch to a long-term UK visa until 31 May. This includes applications where you would usually need to apply for a visa from your home country. You’ll need to meet the same visa requirements and pay the UK application fee. This includes those whose leave has already been automatically extended to 31 March 2020”.

The Government needs to go further.  Leaving the undocumented in limbo, unregularized and unable to access essential services, fails to recognise that in current circumstances the undocumented are human, human enough to be treated equally as British citizen themselves in matters of life and death.

Those wishing to regularise their immigration status should not wait endlessly but seek to submit leave applications relying on their circumstances and requesting that leave be granted.

(2)LEAVE TO REMAIN OUTSIDE THE RULES  v  APPENDIX FM AND PARAGRAPH 276ADE(1) APPLICATIONS

There is a difference between applications placing reliance upon the Immigration Rules and those, forming the basis of discussion, which place reliance on exceptional compelling and compassionate circumstances/factors outside the Rules.

From 1 April 2003 to 9 July 2012, the majority of applications which fell outside the Immigration Rules in the UK were considered within the discretionary leave criteria, which (along with humanitarian protection) replaced exceptional leave to enter or remain. This included cases on family, private life, medical and other European Convention on Human Rights (ECHR) grounds.

On 9 July 2012 and 10 August 2017, legislation was changed to bring the majority of family and private life cases under part 7 paragraph 276ADE(1) and Appendix FM of the Immigration Rules.

In all family and private life cases, the Home office will consider whether the Immigration Rules are otherwise met and if not, will go on to consider whether there are exceptional circumstances which would render refusal a breach of ECHR Article 8 because it would result in unjustifiably harsh consequences for the applicant or their family. Each application is considered on its merits and on a case-by-case basis taking into account the individual circumstances.

(3)POWER OF THE SECRETARY OF STATE TO GRANT LEAVE TO REMAIN OUTSIDE THE RULES

The Secretary of State has the power to grant leave on a discretionary basis outside the Immigration Rules from the residual discretion under the Immigration Act 1971.

An application for leave to remain outside the Rules  can be granted on compelling compassionate grounds where the Home Office decides that the specific circumstances of the case includes exceptional circumstances. These circumstances will mean that a refusal would result in unjustifiably harsh consequences for the applicant or their family, but which do not render refusal a breach of ECHR Article 8, Article 3, refugee convention or other obligations.

It is arguable that the Secretary of State’s own Policy Guidance was formulated to cater for current circumstances, ie Leave outside the Immigration Rules, Version 1.0, 27 February 2018.

Although the Leave to Remain Outside the Rules( LOTR) Guidance states:

“A grant of LOTR should be rare. Discretion should be used sparingly….”

there are other parts of the Guidance upon which reliance can be placed:

“Reasons to grant LOTR

Compelling compassionate factors are, broadly speaking, exceptional circumstances which mean that a refusal of entry clearance or leave to remain would result in unjustifiably harsh consequences for the applicant or their family, but which do not render refusal a breach of ECHR Article 8, refugee convention or obligations. An example might be where an applicant or relevant family member has experienced personal tragedy and there is a specific event to take place or action to be taken in the UK as a result, but which does not in itself render refusal an ECHR breach.

Where the Immigration Rules are not met, and where there are no exceptional circumstances that warrant a grant of leave under Article 8, Article 3 medical or discretionary leave policies, there may be other factors that when taken into account along with the compelling compassionate grounds raised in an individual case, warrant a grant of LOTR. Factors, in the UK or overseas, can be raised in a LOTR application. The decision maker must consider whether the application raises compelling compassionate factors which mean that the Home Office should grant LOTR. Such factors may include:

• emergency or unexpected events

• a crisis, disaster or accident that could not have been anticipated

LOTR will not be granted where it is considered reasonable to expect the applicant to leave the UK despite such factors. Factors, in the UK or overseas, can be raised in a LOTR application. These factors can arise in any application type”.

The coronavirus is a crisis, a disaster that could not have been anticipated. How the current circumstances and the effects flowing from the pandemic may potentially affect the country conditions in the country of return justifying a leave application, is dealt with below.

(4)REASONS FOR APPLICATION

Any compelling compassionate factors that an applicant wishes to be considered, including documentary evidence and the period of leave required or requested would need to be raised within an application.

A basis of application as clarified above and also set out further below could place reliance on the following:

  • Exceptional circumstances outside the Rules – a refusal of leaveto remain would result in unjustifiably harsh consequences for the applicant or their family
  • Article 8 of the ECHR within the Rules- although the applicant has lived continuously in the UK for less than 20 years, there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK( due to conditions in the country of return)
  • Article 3 medical condition grounds
  • Carers Concession Policy

(5)LEAVE TO REMAIN OUTSIDE THE RULES- APPLICATION PROCESS

If an applicant in the UK wishes to be considered solely outside the Immigration Rules, they should apply using the further leave (human rights other) (FLR (HRO) application form or further leave (Immigration Rules) (FLR(IR) form.

Applicants should indicate that they are applying for other purposes not covered by other application forms and should provide details, including any relevant documentary evidence explaining in more detail why they are seeking leave to remain on compelling compassionate grounds.

Where the applicant is not subject to a fee exemption, they must pay the relevant application fees and charges.

If an applicant in the UK wishes to be considered for a grant of indefinite leave to remain (ILR) outside the Immigration Rules, they should apply on form SET(O).

(6)WHAT THE HOME OFFICE SHOULD DO- PROBLEMS WITH THE CURRENT APPLICATION PROCESS

UK Visa and Citizenship Application Centres (UKVCAS), Post Office enrolment services and Service and Support Centres (SSCs) are temporarily closed because of coronavirus (COVID-19). Applicants cannot book an appointment.

The Home Office should set up a new simplified  procedure to enable submission of an application/request for leave to remain outside the Rules via a designated email address  through which  submission of  representations and supportive documentation can also be done.

Some applicants are unable to make provision of the required Home office application fee (£1033.00 per applicant) and NHS Health Surcharge( £1000 per applicant).

The online application procedure, beginning from the on-line fee waiver application process to actual submission of the online substantive application form appears redundant currently,  not fit for purpose.

The fee waiver application process requires supportive documentation to be sent to a designated Home Office postal address, with a decision made usually within 3 to 6weeks. That’s too long a process where individuals require urgent decisions on applications made.

Even with online submission of a form, currently there are no appointments to be obtained to enable the application process to progress.

The Home Office should  urgently be providing a  designated email address so that consideration of applications can be made and decisions notified. 

(7)DURATION OF GRANT OF LEAVE TO REMAIN OUTSIDE THE RULES

The Secretary of State’s Policy is that the  period of  grant of leave to remain outside the rules should be of a duration that is suitable to accommodate or overcome the compassionate compelling grounds raised and no more than necessary based on the individual facts of a case.

The Home Office position is that most successful applicants would require leave for a specific, often short, one-off period.

Indefinite leave to enter or remain can be granted outside the rules where the grounds are so exceptional that they warrant it. Such cases are stated as likely to be extremely rare. The length of leave will depend on the circumstances of the case.

Applicants who are granted leave to remain outside the Rules are not considered to be on a route to settlement (indefinite leave to remain) unless leave is granted in a specific concessionary route to settlement.

(8)CONDITIONS OF GRANT OF LEAVE OUTSIDE THE RULES – NO RECOURSE TO PUBLIC FUNDS

Home Office Guidance, Leave outside the Immigration Rules, Version 1.0, 27 February 2018 provides  that where leave is granted outside the Rules:

“Conditions for limited leave should be no recourse to public funds, no work and no study. Any deviation from this should be rare and only where there is sufficient evidence to show why such conditions should not be applied”.

(9)NO RECOURSE TO PUBLIC FUNDS- THE WAY ROUND THIS RELYING ON  THE DISCRETIONARY LEAVE POLICY

The Secretary of State’s Policy Guidance Discretionary leave, provides relevantly:

“1.2 Background

………………

……..The circumstances in which someone may be granted leave for exceptional (non-family or private life) reasons are covered either by the policy on Leave outside the Rules (LOTR) for non-Article 8 reasons or this DL instruction.

………………………

3.1 Key principles

Discretionary Leave (DL) must not be granted where an individual qualifies for leave under the Immigration Rules or for Leave outside the Rules (LOTR) for Article 8 reasons. It only applies to those who provide evidence of exceptional compassionate circumstances or there are other compelling reasons to grant leave on a discretionary basis”.

Applicants should  apply for leave and  specifically request a grant of Discretionary  Leave to Remain. This is most relevant as the conditions under which leave is granted are more favourable, allowing recourse to public funds:

“Section 4: Granting or refusing leave

……………

4.3 Recourse to public funds, work and study

Those granted DL have recourse to public funds and no prohibition on work. They are also able to enter higher education. However, those on limited leave are not eligible for higher education student finance under existing Department of Business, Innovation and Skills regulations. In addition, a study condition applies to all adult temporary migrants granted DL which prohibits studies in particular subjects without first obtaining an Academic Technology Approval Scheme (ATAS) clearance certificate from the Counter-Proliferation Department of the Foreign and Commonwealth Office (FCO). Those granted DL who are aged 18 or will turn 18 before their limited leave expires will, in addition to any other conditions which may apply, be granted leave subject to the requirements set out Part 15 in the Immigration Rules”.

(10)GRANT OF LEAVE TO REMAIN UNDER THE DISCRETIONARY LEAVE POLICY

Where Discretionary Leave  is granted, Home Office Policy Guidance states that the duration of leave must be determined by considering the individual facts of the case but leave should not normally be granted for more than 30 months (2 and a half years) at a time.

When a person is granted an initial period of discretionary leave, this does not necessarily mean they will be entitled to further leave or to settlement. Subsequent periods of leave may be granted providing the applicant continues to meet the relevant criteria set out in the published policy on Discretionary leave applicable at the time of the decision.

From 9 July 2012, those granted Discretionary Leave must normally have completed a continuous period of at least 120 months’ limited leave (i.e. a total of 10 years, normally consisting of 4 separate 2 and a half year periods of leave) before being eligible to apply for settlement.

Separate arrangements exist for those granted an initial period of 3 years’ Discretionary Leave prior to 9 July 2012.

(11)REFUSAL OR MERE DEFERRAL ON BASIS THAT CIRCUMSTANCES ARE SHORT LIVED

Both Guidance,  Discretionary leave  and  Leave outside the Immigration Rules, contemplate factors  being raised which may  be sufficiently short lived,  such that it might be proportionate to refuse the application or claim  and give an undertaking not to remove the individual or expect them to leave the UK voluntarily until the circumstances have changed.

Where it is considered that the person can leave the UK within a short time of the date of decision, Home Office Guidance states that it will normally be appropriate to refuse the application or claim outright, not grant a period of leave to remain outside the Rules and defer removal until such time as it is possible.

It is however not known how long the pandemic or lockdown will last.

“Britain has been braced to expect a partial lockdown of society “for six months or longer”, following another sharp rise in the number of coronavirus deaths. Only “some” of the harsh restrictions will be lifted in the weeks to come, the deputy chief medical officer warned – even if a review after Easter judged they are working .  “Three weeks for review, two or three months to see if we’ve really squashed it,” Dr Jenny Harries told a Downing Street press conference.Download the new Independent Premium appSharing the full story, not just the headlinesDownload now  “But three to six months, ideally – but lots of uncertainty in that – to see at which point we can actually get back to normal. And it is plausible it could go further than that.”- https://www.independent.co.uk/news/uk/politics/coronavirus-uk-lockdown-end-latest-boris-johnson-a9432666.html

An applicant should provide make submissions on why a non-standard grant of less than 30 months is inapplicable. It should be explained why the circumstances of the case are not just unusual but can be distinguished to a high degree from other cases to the extent of justifying periods of leave of at least 30 months or more.

(12)REFUSAL AND RIGHT OF APPEAL

Guidance, Leave outside the Immigration Rules, states that where a human rights claim has not been decided as part of the consideration, applicants who apply for a grant of leave outside the Immigration Rules and are refused will not have a right of appeal against the decision or an administrative review of the decision.

An applicant should accompany the application with  detailed arguments  also focused on private and family life grounds or Article 3 of the ECHR, where appropriate.

For those with children who cannot yet be considered qualifying children for the purposes of the Rules,( ie British children or children under 18years with 7years continuous residence in the UK) reliance can be placed on Guidance, Leave outside the Immigration Rules  and Discretionary leave which state:

In respect of children and those with children

The application of this guidance must take into account the circumstances of each case and the impact on children, or on those with children, in the UK. Section 55 of the Borders, Citizenship and Immigration Act 2009 places an obligation on the Secretary of State to take account of the need to safeguard and promote the welfare of children in the UK when carrying out immigration, asylum and nationality functions.

In practice, this requires a consideration to be made of the best interests of the child in every decision that has an impact on that child. This is particularly important where the decision may result in the child having to leave the UK, where there are obvious factors that adversely affect the child, or where a parent caring for the child asks us to take particular circumstances into account. All decisions must demonstrate that the child’s best interests have been considered as a primary, but not necessarily the only, consideration”.

Article 8 considerations can therefore be raised in relation to non-qualifying children, setting out reasons why their removal from the UK would be disproportionate.

For those who have been in the UK for less than 20 years, reference may be made to Paragraph 276ADE(1)(vi) of the Rules that there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.

Home Office Policy Guidance, Family life (as a partner or parent), private life and exceptional circumstances, Version 5.0, 10 December 2019, provides:

“Assessing whether there are ‘very significant obstacles to integration into’ the country of return

………………

Relevant country information should be referred to when assessing whether there are very significant obstacles to integration. You should consider the specific claim made and the relevant national laws, attitudes and country situation in the relevant country or regions…..”

Where the conditions in the country of return are such that  at the point of return, there are continuing significant effects of the virus outbreak, then that may be put forward  as a factor indicating very significant obstacles to reintegration in the country of return.

(13)LEAVE TO REMAIN – ARTICLE 3 MEDICAL CONDITION CASES

Article 3 of the ECHR deals with inhuman or degrading treatment. An applicant relying on article 3 needs to show there are substantial grounds to believe there is a significant risk of such treatment (to a reasonable degree of likelihood) if they were returned to their country of origin.

Article 8 of the ECHR deals with respect for private life, including a person’s moral and physical integrity. The consequences to an applicant’s health of removing them from the UK could, in principle, engage article 8, however, such cases are considered by the Home Office  to be rare and that in most cases, it is unlikely article 8 will add anything decisive to a claim under article 3 when the same facts are relied on.

The Home Office position is also that there is no provision within the Immigration Rules for a person to remain in the UK to access, or to continue to access, medical treatment on the National Health Service (NHS). Such claims usually rely on article 3 and/or article 8 of the European Convention on Human Rights (ECHR).

The threshold set by Article 3 is very high

In summary, the Home Office position is that as regards Article 3 human rights claims on medical grounds, all cases have to meet the ‘N’ threshold:

The applicant is gravely ill (at a critical stage of a terminal illness and is close to death) and removing them from the UK would:

  • deprive them of the treatment they are currently receiving, and
  • sending them home to an early death in circumstances which would constitute a breach of article 3 of the European Convention of Human Rights (ECHR).

The Guidance  on Discretionary leave, provides:

“3.2 Medical cases

………

In most circumstances, a person cannot rely on Article 3 to avoid return on the basis that they require medical assistance in the UK. The improvement or stabilisation in a person’s medical condition resulting from treatment in the UK and the prospect of serious or fatal relapse on expulsion (ie deportation or removal from, or a requirement to leave, the UK) will not in themselves render expulsion inhuman treatment contrary to Article 3.

The threshold set by Article 3 is very high. To meet the threshold, a person will need to show that there are exceptional circumstances in their case which militate against return. Taken together, the relevant case law of D v United Kingdom [1997] 25 EHRR 423 and N v SSHD [2005] UKHL31 suggests that exceptional circumstances will arise when a person is in the final stages of a terminal illness, without the prospect of medical care or the support of family or friends or palliative care (ie relief of the pain, symptoms and stress caused by a serious illness and the approach of death) on return. The House of Lords’ decision in N was upheld by the European Court of Human Rights in N v UK (2008) 47 EHRR 39, and recently affirmed by the Court of Appeal in GS (India) & Ors v The Secretary of State for the Home Department [2015] EWCA Civ 40, in which Lord Justice Laws confirmed the very high threshold, stating that the case-law suggested that the ‘exceptional’ class of case is ‘confined to deathbed cases’ (paragraph 66).

The test established by N and D requires that caseworkers must make an assessment of whether the person’s illness has reached such a critical stage (ie is a terminal illness and the person is close to death) that it would amount to inhuman treatment to deprive them of the care which they are currently receiving and send them home unless there is care available there to enable them to live their final days with dignity. Of particular relevance to this assessment will be whether:

• the person is critically ill at the point of decision

• there is any treatment available in the country of return (including palliative care)

• the person will be able to access such treatment as is available (although the fact that they are unlikely to be able to do so is not determinative)

• the person will have the support of family or friends on return

Exceptional circumstances might in principle arise in other contexts, but the Courts have made clear that the threshold is very high. If the person’s condition or situation does not meet the Article 3 threshold, removal will not breach Article 3”.

Application procedure- medical condition cases:

Article 3 applications are non-charged, with the result  that no Home Office application fee or NHS Health surcharge is required to be submitted with the application, however where completing Form  (FLR (HRO) on line, a fee waiver application should first have been applied for and granted.

Home Office Guidance, Human rights claims on medical grounds, version 6.0 Valid from 20 May 2014,  provides:

“Applications by letter

You should normally reject applications made by letter as invalid and send the applicant the appropriate application form. However, you can accept the application as valid if the letter is submitted with acceptable medical evidence which:

· confirms the claimant is gravely ill, and

· has only weeks to live (despite ongoing treatment in the UK)

………………

Charging: article 3 and article 8 ‘mixed applications’

Where an applicant also cites other articles of the European Convention of Human Rights (ECHR) as a reason of claim (including article 8), you will need to decide if the article 3 claim constitutes a genuine reason of claim, or if it is cited only to prevent the applicant from paying a fee.

Provided article 3 is a genuine basis for a claim, then the whole application (including consideration of any of the other elements of the claim) will be uncharged. This does not mean the article 3 claim must be one which will succeed. However, you must think it has a realistic prospect of success.

If you are concerned the article 3 claim was included only so the applicant did not have to pay a fee you must discuss this with your senior caseworker and get policy advice, see link on right: Administrative operational policy.

In these circumstances only, it may be appropriate to refuse the article 3 claim, and request that the applicant make a further (charged) application for any other reasons”.

“Genuine” Article 3 medical condition cases may therefore by submitted by letter without going via the online application route.

As noted above, in current circumstances, the Home Office should be providing a designated email address to enable submission  and prompt decision making.

The applicant should provide accurate and up-to-date medical evidence in support of their application. The focus of the evidence they provide must be on their current state of health. A medical report must be submitted and written and signed by a qualified health professional who must have seen the claimant in person. For this purpose, the definition of a qualified health professional is a Consultant working in the NHS in the relevant specialist subject. This person must be registered with the General Medical Council. The medical report must be printed on letter-headed paper showing the address and contact details of the hospital or National Health Service (NHS) trust and the name, telephone number and fax number of the Consultant.

Grant of leave- medical condition cases

If an application is successful, Discretionary leave is granted outside of the Immigration Rules.

Guidance, Human rights claims on medical grounds, version 6.0 Valid from 20 May 2014, states as follows as regards grant of leave where an Article 3 medical condition case is successful:

“You may grant discretionary leave up to a maximum of 30 months (2.5 years). However, the leave must not exceed:

· 30 months (2.5 years), and

· life expectancy by more than three months.

You can grant leave in line with the length of treatment if it is appropriate”.

Case of Paposhvili relaxes the test for violation of Article 3 medical condition cases only to a very modest extent

The Court of Appeal in AM (Zimbabwe) & Anor v The Secretary of State for the Home Department [2018] EWCA Civ 64, considered  two appeals which concerned  the question of the operation of Article 3 of the European Convention on Human Rights, applied as a Convention right in domestic law under the Human Rights Act 1998, in relation to removal of foreign nationals from the UK where they were suffering from serious illnesses( HIV and cancer).

The Court noted that  position in domestic law was authoritatively settled in N v Secretary of State for the Home Department [2005] UKHL 31; [2005] 2 AC 296. The approach laid down by the House of Lords in that case was endorsed by the Grand Chamber of the European Court of Human Rights (“ECtHR”) in N v United Kingdom (2008) 47 EHRR 39.

A question arose in AM(Zimbabwe) whether the test for application of Article 3 in this context should now be adjusted in light of the further Grand Chamber judgment in Paposhvili v Belgium, judgment of 13 December 2016; [2017] Imm AR 867.  

The Grand Chamber in Paposhvili set out the general principles governing cases of this kind at paragraphs 172 to 193.  The Paposhvili test is set out at paragraph 183 of the judgement:

“183. The Court considers that the “other very exceptional cases” within the meaning of the judgment in N. v. the United Kingdom (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness”.

In AM(Zimbabwe) the Court of Appellant considered the effect of the judgment in Paposhvili and concluded:

“37. I turn, therefore, to consider the extent of the change in the law applicable under the Convention which is produced by the judgment in Paposhvili, as compared with the judgments in D v United Kingdom and N v United Kingdom. In my view, it is clear both that para. [183] of Paposhvili, set out above, relaxes the test for violation of Article 3 in the case of removal of a foreign national with a medical condition and also that it does so only to a very modest extent.

38. So far as the ECtHR and the Convention are concerned, the protection of Article 3 against removal in medical cases is now not confined to deathbed cases where death is already imminent when the applicant is in the removing country. It extends to cases where “substantial grounds have been shown for believing that [the applicant], although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy” (para. [183]). This means cases where the applicant faces a real risk of rapidly experiencing intense suffering (i.e. to the Article 3 standard) in the receiving state because of their illness and the non-availability there of treatment which is available to them in the removing state or faces a real risk of death within a short time in the receiving state for the same reason. In other words, the boundary of Article 3 protection has been shifted from being defined by imminence of death in the removing state (even with the treatment available there) to being defined by the imminence (i.e. likely “rapid” experience) of intense suffering or death in the receiving state, which may only occur because of the non-availability in that state of the treatment which had previously been available in the removing state.

39.There are a number of powerful indicators, including in the Grand Chamber’s judgment itself, which support this interpretation of para. [183] and the inference that the Grand Chamber only intended to make a very modest extension of the protection under Article 3 in medical cases:

i) Article 3 is an unqualified right with a high threshold for its application (see N v United Kingdom, para. [43], and also Paposhvili, para. [174]);

……………..

iv) the Grand Chamber in Paposhvili seeks only to “clarify” the approach set out in N v United Kingdom (see para. [182]), not to effect any major change to what had been authoritatively laid down in that case; and

v) the Grand Chamber at para. [183] in Paposhvili, as well as using the rubric “other very exceptional cases”, which itself indicates how rarely the test in Article 3 will be found to be satisfied in medical cases, emphasised in the final sentence that it was still intending to indicate that there was “a high threshold for the application of Article 3” in medical cases. This echoes the point made by the Grand Chamber in para. [43] of N v United Kingdom, set out above, about the high threshold for application of Article 3”.

AM  was considered by the Court  to have failed to satisfy the test in paragraph 183 of Paposhvili because he has failed to show that there were  substantial grounds to believe he faced a real risk of a serious and rapid decline in his health resulting either in intense suffering (to the Article 3 standard) or death in the near future if he was removed to Zimbabwe. He was HIV positive, but did not yet have AIDS. He had adduced no medical report which stated that he was likely to die soon if removed to Zimbabwe, even if he received no treatment at all; or that he could not tolerate, without side-effects, any of the range of ARV treatments available in Zimbabwe; or that, if the only ARV treatments available to him in Zimbabwe are ones which would produce side-effects, those side-effects would be so severe as the cost of keeping him alive that they would constitute suffering at an intensity to bring his case within Article 3 according to the high threshold which applies in that regard. It was considered by the Court of Appeal that AM’s case was not even as strong as that of the applicant with AIDS in N v United Kingdom, which the Grand Chamber in Paposhvili had affirmed was correctly decided.

AM appealed to the  Supreme Court where that Court was asked to consider whether to return him to Zimbabwe would violate his right under Article 3 of the European Convention on Human Rights not to be subjected to inhuman treatment by reason of his medical condition, in light of the decision of the European Court of Human Rights in Paposhvili v Belgium [2017] Imm AR 867.

AM(Zimbabwe) was heard in the Supreme Court on 4 and December 2019 and a decision is expected within some weeks or months.

Paposhvilli test and Coronavirus

The Court of Appeal in AM(Zimbabwe) considered that AM could not satisfy the test in paragraph 183 of Paposhvili as set out above.

As of 9am on 30 March 2020, a total of 134,946 people had been tested  in the UK, of which 112,805 were confirmed negative and 22,141 were confirmed positive.

As of 5pm on 29 March 2020, 1,408 patients in the UK who tested positive for coronavirus (COVID-19) had died.

The World Health Organization provides daily Coronavirus disease (COVID-2019) Situation Reports for each Country- https://www.who.int/emergencies/diseases/novel-coronavirus-2019/situation-reports

The issue is whether an applicant would be able to place reliance on  the  “N” test or the Paposhvilli test if to be returned to their country of origin. The circumstances that were before the Supreme Court in December 2019 as per AM’s case are not those prevailing currently- they are much worse and potentially affect a multitude of people subject to removal.

The pandemic shows why relaxation of the test in N  is required  if reliance on Article 3 is not to be rendered illusory.

In the event that the UK may in a few weeks or coming near months be in a position to effect removals, the conditions a person(whether diagnosed with the virus or not) would  likely meet if removed to the country of return are of significant concern.

Although the Home Office might point to the risk of exposure currently existing also in the UK, if however removals are not to be effected for some months, then the more reason to grant the undocumented leave to remain outside the Rules so as to access vital services.

The continued spread, severity, spectrum of disease, impact on the community in relation to the virus outbreak will vary country by country.

An application  for leave to remain on Article 3 grounds should provide the most up  to date figures on how far  the virus has spread  across the country of return, the number of deaths arising  from the virus, the numbers tested and diagnosed as having the virus, the number of those not tested but estimated to have the virus, the country of return’s response to the  pandemic and the state  of its  health care system in response to  the virus, etc.  As per Paposhvilli principles, these consideration bring to the fore the following relevant paragraphs from that judgement:

“188. As the Court has observed above (see paragraph 173), what is in issue here is the negative obligation not to expose persons to a risk of ill-treatment proscribed by Article 3. It follows that the impact of removal on the person concerned must be assessed by comparing his or her state of health prior to removal and how it would evolve after transfer to the receiving State.

189. As regards the factors to be taken into consideration, the authorities in the returning State must verify on a case-by-case basis whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant’s illness so as to prevent him or her being exposed to treatment contrary to Article 3 (see paragraph 183 above). The benchmark is not the level of care existing in the returning State; it is not a question of ascertaining whether the care in the receiving State would be equivalent or inferior to that provided by the health-care system in the returning State. Nor is it possible to derive from Article 3 a right to receive specific treatment in the receiving State which is not available to the rest of the population.

190. The authorities must also consider the extent to which the individual in question will actually have access to this care and these facilities in the receiving State. The Court observes in that regard that it has previously questioned the accessibility of care (see Aswat, cited above, § 55, and Tatar, cited above, §§ 47-49) and referred to the need to consider the cost of medication and treatment, the existence of a social and family network, and the distance to be travelled in order to have access to the required care (see Karagoz v. France (dec.), no. 47531/99, 15 November 2001; N. v. the United Kingdom, cited above, §§ 34-41, and the references cited therein; and E.O. v. Italy (dec.), cited above).

191. Where, after the relevant information has been examined, serious doubts persist regarding the impact of removal on the persons concerned – on account of the general situation in the receiving country and/or their individual situation – the returning State must obtain individual and sufficient assurances from the receiving State, as a precondition for removal, that appropriate treatment will be available and accessible to the persons concerned so that they do not find themselves in a situation contrary to Article 3 (on the subject of individual assurances, see Tarakhel, cited above, § 120).

192. The Court emphasises that, in cases concerning the removal of seriously ill persons, the event which triggers the inhuman and degrading treatment, and which engages the responsibility of the returning State under Article 3, is not the lack of medical infrastructure in the receiving State. Likewise, the issue is not one of any obligation for the returning State to alleviate the disparities between its health-care system and the level of treatment existing in the receiving State through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. The responsibility that is engaged under the Convention in cases of this type is that of the returning State, on account of an act – in this instance, expulsion – which would result in an individual being exposed to a risk of treatment prohibited by Article 3”.

The Home Office should be formulating policy in relation to considerations of medical condition cases and removals arising for the coronavirus.

In the meantime however, affected applicants and those relatives or friends entrusted to care and support them, should consider submission of effective representations with supportive evidence for leave to remain on discretionary grounds.

(14)CARERS CONCESSION

There are likely to be persons without leave to remain( or who hold leave to remain but need to switch ) who are caring for relatives who are permanently resident here or are British citizens.

Chapter 17, section 2 of the Immigration Directorate Instructions deals with how UK Visas and Immigration handles applications from carers – Section 2: carers

The United Kingdom’s position on carers and the ‘Care in the Community’ policy stems from existing case law, particularly the case of R v Secretary of State for the Home Department Ex parte Zakrocki.

The Carer’s Policy however stresses that UKVI and the Department of Health have consistently argued that the care in the community policy is not designed to enable people to stay in the UK who would otherwise not have leave to do so. Rather, leave should only be granted where it is warranted by particularly compelling and compassionate circumstances.

Leave to Remain – Carers for friends of a sick or disabled person

Home Office policy is that applications for leave to remain in order to care for a sick or disabled friend should normally be refused. However, in an emergency (e.g. where the patient has suddenly fallen ill and there is insufficient time to arrange permanent care or where there is nobody else in the United Kingdom to whom the patient can turn) it may be appropriate to grant leave.

Home Office Caseworkers are required to request written confirmation from the sponsor that the applicant is his/her friend. The sponsor will need to indicate how long he has known the applicant and will need to confirm that s/he agrees that the applicant can act as his/her carer. If this is not possible, Home Office caseworkers will need to request such confirmation from the sponsor’s relatives.

Consideration of the application

Application form FLR(HRO) can used to apply for leave to remain outside the Rules.

Whilst each case must be looked at on its individual merits, when considering whether a period of leave to remain should be granted, Home Office decision makers will consider the following:

• the type of illness/condition (this should be supported by a Consultant’s letter); and

• the type of care required; and

• care which is available (e.g. from the Social Services or other relatives/friends); and

• the long-term prognosis.

Granting an initial period of leave to remain

Where the application is to care for a sick or disabled relative, the Carer’s Policy states that it will normally be appropriate to grant leave to remain for 3 months on Code 3 (no recourse to employment or public funds) outside the Rules.

The applicant is required to be informed that leave has been granted on the strict understanding that during this period arrangements will be made for the future care of the patient by a person who is not subject to the Immigration Rules.

An extension of further leave should not be given unless there are wholly exceptional circumstances. Such circumstances could include where the sponsor is terminally ill and has no Social Services or family support available.

Requests for further leave to remain

Where an application is received requesting a further period of leave to continue to care for a sick relative or friend further detailed enquiries will be made by the Home Office to establish the full facts of the case.

The applicant will be required to produce the following:

• a letter from a registered medical practitioner who holds an NHS consultant post with full details of the condition/illness and long term prognosis; and

• a letter from the local Social Services Department, where they are known to be involved, advising of their level of involvement, the perceived benefits of the presence here of the applicant, and an explanation as to why suitable alternative care arrangements are not available.

• Any further evidence that alternative arrangements for the care of the patient have been, or are being, actively explored. For example, whether contact has been made with voluntary services/charities to see if they can assist or whether the possibility of private care has been costed and assessed. (a previous grant of a 3 month extension should have been accompanied by a letter explaining that the extension was granted to enable such arrangements to be made; and

• full details of the patient’s family in the United Kingdom, the degree of relationship, and, if applicable, details of how the patient was previously cared for and why these arrangements are no longer considered suitable and/or are no longer available; and

• details of the applicant’s circumstances in his home country, such as whether he has a spouse and children, the type of employment and other relevant family circumstances (as a general rule a person seeking to remain in the United Kingdom on a long term basis as a carer should normally be unmarried and have no dependants); and

• evidence that there are sufficient funds available to maintain and accommodate himself/herself without working or recourse to public funds.

An enquiry letter  set out in Annex B  of the Guidance can be used in cases where an applicant is applying for leave/further leave to remain on the basis that they are caring for a sick relative or friend. The letter’s questions are however not exhaustive and can be amended to fit the particular circumstances of the case.

Granting a further period of leave to remain

In cases where there are sufficient exceptional compassionate circumstances to continue the exercise of discretion, leave to remain may be granted for up to 12 months at a time, on Code 3 (no recourse to employment or public funds).

In wholly exceptional circumstances Code 1A (access to employment and public funds allowed) may be appropriate but the Guidance requires that such a decision must not be taken without the agreement of a Senior Caseworker.  In all cases it must be made clear to the carer that the Home Office are acting exceptionally outside the Immigration Rules.

Applications for Settlement

Home Office policy is that a carer will not normally qualify for settlement based on the time he has spent in the United Kingdom looking after a sick relative or friend unless he qualifies under the Immigration Rules relating to long residence or qualifies under some other category of the Rules. Indefinite leave to remain should be refused under Paragraph 322(1) of HC 395. Where an application for settlement has been received which falls for refusal, Home Office caseworkers will likely still consider whether further limited leave should be granted.

Refusal decisions

Where it has been decided that the facts of the case do not merit a grant of leave to remain outside the Rules, the application is likely to be refused under paragraph 322(1) of the Immigration Rules.

This refusal decision is required to be sufficiently detailed to satisfy an applicant and the Tribunal, should an appeal be lodged, that the application has been properly considered in line with the terms of the Carer’s concession. Its contents will form the basis of Home Office argument in any appeals explanatory statement or in the event of a further legal challenge.

For those who submit in time applications (i.e. the applicant still had valid leave at the time of application) as a carer any decision to refuse will attract a limited right of appeal.

If an out of time application, (i.e. the applicant had no valid leave at the time of application) for leave to remain/further leave to remain as a carer is received, any decision to refuse will not attract a right of appeal.

Other issues

Where someone is applying for leave to remain to care for a person who is not settled in the UK (for example, parents wishing to remain in the UK to care for their child while s/he receives treatment) such applicants will likely be considered for Discretionary Leave to Remain,

Applicants, who are refused leave as a carer, would not normally qualify for Discretionary Leave.

The Carer’s Policy provides that under the Care in the Community arrangements, some patients may qualify for an Attendance Allowance from which they can pay for a person to care for them. Attendance Allowance is a tax-free benefit for people aged 65 or over who need help with personal care because they are physically or mentally disabled. The allowance is paid to the patient rather than the carer and therefore the carer would not be considered to be in receipt of public funds. If the patient is claiming other benefits and is using these to support and accommodate the carer, provided that the patient is not claiming any extra benefit for the carer this should not be considered as recourse to public funds unless the carer was to claim benefits in his own right.

(15)APPLYING TO LIFT THE NO RECOURSE TO PUBLIC FUNDS CONDITION

There are migrants who have been granted leave under the private and family life route with no recourse to public funds who might be experiencing financial or other hardship which may necessitate a need to resort to pubic funds.

Paragraph 6 of the Immigration Rules provides the mearing of “Public Funds”.

Home Office Policy Guidance, Family life (as a partner or parent), private life and exceptional circumstances, Version 5.0, 10 December 2019,  sets out the criteria for the non-imposition or lifting of the no recourse to public funds condition code.

Home Office decision makers exercise discretion not to impose, or to lift, the no recourse to public funds condition code only where the applicant meets the requirements of paragraph GEN.1.11A of Appendix FM or paragraph 276A02 of the Immigration Rules on the basis of the applicant:

• having provided satisfactory evidence that they are destitute or there is satisfactory evidence that they would be rendered destitute without recourse to public funds

• having provided satisfactory evidence that there are particularly compelling reasons relating to the welfare of a child on account of the child’s parent’s very low income

• having established exceptional circumstances in their case relating to their financial circumstances which, require the no recourse to public funds condition code not to be imposed or to be lifted

Home Office decision makers  are required to consider all relevant personal and financial circumstances raised by the applicant, and any evidence of these which they have provided.

The relevant application form to be completed by those  granted leave subject to the condition, Request for a change of conditions of leave granted on the basis of family or private life, requires the following to be submitted:

  • The  completed notification form;
  • The applicant’ existing Biometric Residence Permit (BRP) (where relevant), and passport (including  the Leave to Remain vignette where relevant);
  • Documentary evidence that the applicant meets the policy on granting recourse to public funds.

The applicant should provide evidence of their financial circumstances and living arrangements. This could include documents such as:

· Bank statements

· Savings account statements

· Pay slips

· Information about level of the applicant’s rent and bills

· Tenancy agreement or mortgage statement

· Utility and other relevant bills

· P45 / P60

· Letter confirming employment (the person writing should state their position in the company and provide contact details)

· Letter from Local Authority confirming that support is being provided

· Letter from registered charity or other organisation providing support

· Letter from family or friends who are providing support

· Any letter confirming that  the applicant or  their  spouse or partner is in receipt of public funds.

The applicant will need to explain what their  current financial circumstances are, how these may have changed, and how they are currently maintaining  themselves.

The completed form, the BRP, passport, and accompanying evidence of the applicant’s  financial circumstances need to be sent to:

TMT 20

PO Box 3468

Sheffield

S3 8WA

Or

Change of Conditions Request
FHR9
PO Box 3468
Sheffield
S3 8WA

The applicant does not need to pay a fee in order to make a request for a change of conditions of leave granted on the basis of family or private life.

If the applicant meets the requirements for an amendment to the conditions of their leave to allow recourse to public funds, the Home Office may send out a letter giving information about enrolling biometric information. This is stated to be required to done at a Service & Support Centre (SSC) for which they may qualify for travel assistance.

Where the application is successful, the applicant will be issued with a biometric residence permit lifting the no recourse condition.

In current circumstances, once again, the Home Office should be providing a designated email address to enable requests to be submitted, processed and decisions made quickly.

The stringent “unduly harsh test” in deportation cases applies even if the qualifying child is a British citizen

Deportation is a complex area of law.  Having full regard to recent judgments of the Upper Tribunal and higher courts serves as a useful reminder of the relevant principles, drawing attention to the latest key cases.

Although Patel (British citizen child – deportation) [2020] UKUT 45 (IAC) (29 January 2020) makes no easy reading, with the summary Headnote itself equally convoluted, not to mention paragraph 65  of the decision, which is quite difficult to follow, the decision is useful for its up-to-date reiteration of principles arising out of well- known caselaw.

Brief Background

The appeal concerned an Indian national, previously granted indefinite leave to remain in the UK in November 2013.  

He was a foreign criminal by virtue of the fact that on 26 January 2016 he was convicted of three counts of conspiring to conceal/disguise/convert/transfer/remove criminal property and one count of proceeds of crime money laundering – failure to disclose in regulated sector.

On 20 February 2017 he was sentenced to three years and six months’ imprisonment. The Appellant’s wife, also originally from India became naturalised as British citizen as did their son born in April 2013.

The relevant law

The legal requirements applicable to the Appellant’s case were those set out in section 117C of the Nationality, Immigration and Asylum Act 2002 and the broadly corresponding provisions of the Immigration Rules at paragraphs 398, 399 and 399A.

The requirements of paragraph 399(a)(ii) (a) and (b) are conjunctive.

The ‘unduly harsh’ requirement is  in two parts, dealing firstly with the 399(a)(ii)(a) limb, which focuses on whether “it would be unduly harsh for the child to live in the country to which the person is to be deported”.  Section 117C(5) of the 2002 Act imposes the same requirements.

The second limb of paragraph 399((a)(ii), is whether “it would be unduly harsh for the child to remain in the UK without the person who is to be deported”.

In KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent) [2018] UKSC 53, Lord Carnwath stated at paragraph 5 that: “It is unnecessary to refer in detail to the Changes to the Immigration Rules made at the same time (paragraphs 398-399), since it is not argued that any differences are material to the issues before us. It is to be noted however that the question whether “the effect” of C’s deportation would be “unduly harsh” (section 117C(5)) is broken down into two parts in paragraph 399

As per CI (Nigeria) v The Secretary of State for the Home Department [2019] EWCA Civ 2027, Leggatt LJstated at paragraph 20: “Paragraphs 398-399A … are in very similar terms to section 117C(3)-(6) of the 2002 Act.”

The issues in the appeal

The  First Tier Tribunal Judge dismissed the Appellant’s appeal  on the basis there was a strong public interest in the Appellant’s removal and the effect of his deportation will not be unduly harsh on either his child or his wife, nor did the particulars of his private and family life amount to very compelling circumstances. 

The judge concluded that it would not be unduly harsh for the Appellant’s wife either to relocate to India or (if she chose) to remain in the UK with her son if the Appellant were deported.  As regards the Appellant’s child, the Judge found that even though it was in his best interests to be with both parents in the UK, it would not be unduly harsh for the child to relocate to India nor unduly harsh for him to remain in the UK.

Upon the appeal reaching the Upper Tribunal, it was noted that the Appellant conceded that he was not able to show that there were very compelling circumstances over and above those set out in paragraphs 399A and 399.

The Upper Tribunal also observed that grounds for permission to appeal raised no challenge to the judge’s finding that the wife could relocate without it being unduly harsh nor to the judge’s finding that it would not be unduly harsh for her to remain in the UK without her partner. Hence paragraph 399(b) (ii) and (iii) were not engaged.

With reference to section 117C(3)-(5) of the 2002 Act, the First Tier Tribunal Judge noted that,  the Appellant, having arrived in the UK in 2008, had not lawfully been in the UK for most of his life and therefore  he could not meet Exception 1. 

Accordingly, the Upper Tribunal stated that the  Appellant’s case hinged entirely on whether he could show that the judge materially erred in law in concluding that he did not meet the requirements of paragraph 399(a)(ii) (a)-(b) of the Immigration Rules and section 117C(5)  of the 2002 Act.

Recent caselaw considered

The Appellant’s Arguments

The appellants grounds were noted to fall into two main components, it being submitted that :

  • that the judge applied an unduly stringent approach to the public interest, as evidenced by her reference to there being “a strong public interest in the Appellant’s removal”. It was submitted that the Supreme Court in Hesham Ali [2016] UKSC 60 had made clear, that whilst great weight ought to be applied to the public interest in deportation, that weight was not a fixity.
  • that the judge’s treatment of the best interests of the child failed to take into account in assessing the ‘unduly harsh’ requirements that the son was a British citizen. The judge had failed to take into account that for the child to relocate to India would entail the loss of his rights as a British citizen, including his right to a British education and to grow up knowing what it means to be British and to establish social connections with other British citizen children in his formative years. The judge’s finding that it would not be unduly harsh for the child to relocate to India paid no attention to his British citizenship.  Given his mother’s unequivocal statement that she would have to go with her husband should he be deported, a statement supported by the medical evidence of her ongoing depression, that finding was material. It was highlighted that the judge accepted that: the appellant and his wife would not be able to afford a private education for their son on return to India, which would mean he would be taught in Gujarati, which he did not speak; that the son suffered from infantile scoliosis and required yearly checkups; and that the child’s school and friendship networks were “sources of happiness and stability” for the child that would be fractured by the move.  It was argued that at no point in this assessment did the judge treat “the British child’s best interests as a primary consideration”.

Upper Tribunal’s observations

  • In both section 117C(5)  of the 2002 Act and paragraph 399(a)(ii), what judicial decision-makers are being required to assess is a hypothetical question – whether going or staying ‘would’ be unduly harsh. They are not being asked to undertake a predictive factual analysis as to whether such a child would in fact go or stay.
  • The general position in international law, the rights that nationals possess are not rights to a particular quality of enjoyment of those rights.
  • In this case the Upper Tribunal was concerned throughout with British nationality in the form of British citizenship only, not with any other type of British nationality
  • Considering Article 8 jurisprudence generally, it is clear that nationality (in the form of British citizenship) is a relevant consideration both in the deportation/removal and the immigration context.

Taking stock of the relevant Strasbourg jurisprudence on Article 8, the Upper Tribunal derived that:

  • Article 8 cannot be considered to impose on a State a general obligation to respect immigrants’ choice of the country of their matrimonial residence and to authorise family reunion in its territory;
  • a relevant factor that must be taken into account is the nationalities of the various persons concerned. The Upper Tribunal could not find any support in this jurisprudence for extending this to include a principle that having a British citizen child furnishes powerful reasons for finding that the effect of the deportation of a parent on the child would be unduly harsh. What weight is to be given to citizenship appears to be left as a matter for each Contracting State’s “margin of appreciation”.
  • in order to establish the scope of the State’s obligations, the facts of the case must be considered. The Upper Tribunal observed that in this regard the Strasbourg jurisprudence reflected their own initial observations on the significance of nationality at the level of abstract principle, in particular that the rights and benefits that attach to nationality will depend heavily on the particular circumstances

Possession of British citizenship by the child does not mean that the person is exempted from the unduly harsh requirements

Applying the above analysis to the specific context of the unduly harsh requirements, the principal conclusions drawn from the Upper Tribunal’s analysis were twofold.

  • First, because the unduly harsh requirements are derivable from Article 8 jurisprudence, nationality (in the form of British citizenship) is a relevant factor when assessing whether the ‘unduly harsh’ requirements of section 117C(5) are met. However, it is not necessarily a weighty factor; all depends on the facts.
  • Second, in respect of the issue of whether it would be unduly harsh for a British citizen child to remain in the UK without one of his parents, it seemed integral to the framework set out in section 117C of the Act and paragraph 399(a)(ii) of the Rules that the possession of British citizenship by a child with whom a person (P) has a genuine and subsisting parental relationship does not mean that P is exempted from the unduly harsh requirements. Even though the child may be British, it has to be unduly harsh both for him or her to leave with P or to stay without P; not just harsh. Thus, some substantial interference with the rights and expectations that come with being British is possible, without the position becoming one of undue harshness to the child.

Akinyemi inapplicable

 It was observed that it was the appellant’s contention  that the judge’s assessment of the unduly harsh requirements of paragraph 399 was vitiated by applying more stringent consideration of the public interest than the statute specifies or requires. In summary, it was being argued that the judge (i) wrongly allowed public interest considerations to intrude into her unduly harsh assessment; and (ii) overstated the strength of the public interest.

The Upper Tribunal did not accept that the judge’s use of the term ’strong public interest’ somehow intruded into her unduly harsh assessment, nor was it accepted that the judge overstated the public interest. 

The Upper Tribunal concluded that the guidance given in Hesham Ali (as reconfirmed in Akinyemi) could not avail the appellant since it was expressly accepted that he could not succeed on the basis of “very compelling circumstances’ over and above those set out in paragraphs 399 and 399A. The analysis conducted of the public interest in Hesham Ali was in the context of cases where it was argued that there were very compelling circumstances. In any event, the asserted low risk of re-offending, cited on behalf of the Appellant could not on the facts of the case rationally cause the strength of the public interest to be reduced to any material extent.

The child’s British’s citizenship and unduly harsh test applied to the case

  • The Upper Tribunal not consider it fatal the mere lack of mention by the judge of the child’s British nationality in the context of assessing whether it would be unduly harsh for the child to live in India, since she had identified this as a relevant factor in the context of her best interests of the child assessment which she stated was her “starting point”. The judge had referred to the British citizenship of the child as one of four factors that led her to conclude that it was in the child’s best interests to be with both parents and to remain in the UK
  • Although the judge did not refer to the child’s British citizenship when assessing the issue of whether it would be unduly harsh to expect him to leave the UK, she was clearly cognisant of the relative advantages and disadvantages that flowed from that status and clearly understood that if the child departed he would not enjoy the rights and benefits he does presently. 
  • The Judge considered the child’s circumstances substantively. She specifically addressed the issue of education taking into account, inter alia, that the appellant and his wife would not be able to afford a private education for their son on return to India, which would mean he would be taught in Gujarati, which he did not speak. She also addressed the issue of medical treatment taking into account that  the son suffered from infantile scoliosis and required yearly check-ups. She also took into account that the child’s school and friendship networks were “sources of happiness and stability” for the child that would be fractured by the move.  It was within the range of reasonable responses for her to conclude that the disadvantages and hardships involved were not unduly harsh.
  • The Upper Tribunal noted that that the higher courts had confirmed many times that the threshold denoted by the ‘unduly harsh’ criterion is a high one: KO (Nigeria) at [23] (“One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation a parent”).
  • Whilst there was no reference to the significance of the child’s British citizenship, it was clearly part of the background accepted by the judge that in the UK the child was actually enjoying the rights and benefits of British nationality and that these would not be threatened or diminished by his father’s departure.
  • The grounds raised no challenge to the judge’s findings that it would not be unduly harsh for the Appellant’s wife to remain in the UK. Nor did the grounds raise any challenge to the judge’s assessment of the ability of the Appellant’s wife to care for the child in the UK.  In the context of the child remaining in the UK with his mother, it was plain that the child was in the UK enjoying in substance the rights and benefits of British citizenship. Hence any failure to address the child’s British nationality in this limb of the ‘unduly harsh’ test could not amount to a legal error since it was a premise of any such assessment that the child was enjoying such rights and benefits.

Zimbabwean Returnees: What you need to know about the current Emergency Travel Document application process

The Country Returns Guide contains Home Office guidance on the documents required and processes for returning those subject to removal to their country of origin.

Country returns guide: February 2020, currently provides as follows in relation to the ETD application process for Zimbabwean returnees:

“All ETD applications should be submitted to the Returns Logistics Team 1.

A mandatory face to face interview will then be arranged through RL Country Liaison and Documentation team 1. This will be through interview schemes at IRC’s, Reporting Centres and prisons. Interview outcomes will be notified via CID.   

Only voluntary cases can be interviewed at the High Commission in London. In such cases the ETD application should be signed by the subject and submitted direct to the HC. RL team 1 will arrange an interview”.

In relation to intended returnees who will be made to face Zimbabwean Embassy officials, where an expired Zimbabwean passport already lies on the Home Office file, ETD’s are likely to be issued fairly quickly.  This much is evident from the outcome of disclosed Home Office Minutes/Case Notes following  Subject Access Requests.

In one instance, a subject attended at Becket House for a nationality interview on 11 December 2019, was met by an Embassy Official and by 17 December 2019, an ETD Agreement had been received from Zimbabwe House.

Returnees have had the following recorded on their Home office files on receipt of  an agreement to issue a travel document:

“ETD Agreement received 17/12/2019.

Confirmed Name:

Confirmed DOB:       

PLEASE NOTE: Returns Logistics Team 1 will send out communications to the business once Removal Directions can be set. PPT quality  photos required. 

When  Removal Directions can be set, please inform Returns Logistics team 9 giving 10 clear working day notice.

Regional spreadsheet updated & will be disseminated tomorrow”.                                                                                                                                                                   

Invitation letter to Nationality Interview

Invitation letters from the Home Office in relation to nationality interviews, will run along the following lines:

You are requested to attend and interview at Becket House Reporting Centre, 1st Floor, St Thomas Street, London, PE6 0E2, on 15 March 2020 at 3.00pm.

You must attend with any dependants such as your husband/wife, dependant children or dependant adults. You should contact  the headmaster/mistress of your children’s school to notify them of the children’s requirement to attend this interview; this should enable the absence  to be recorded  as an authorised period of absence.

The interview is required to collate and verify  personal data about you and your family. You are required to bring with you any documents which can confirm yours and your family’s nationality such as:

  • National Passports(old/expired ones or new ones)
  • Birth Certificate ( UK ones for UK born children/spouse and any from your country of origin)
  • National Identity Cards
  • Military Service Cards
  • Military Service Cards/completion Certificates( from your country of origin)
  • Driving licenses ( from your country of origin ( expired or current)
  • Educational certificates, and
  • Letters from family in your home country

If you are unable to attend the appointment for any reason such as sickness, you should contact this office immediately, as failure to do so my affect any outstanding claim you may have with the Home Office.

Please bring this letter with you together with the documents detailed above and any other documentation you have received from the Home Office”.

As is known, mandatory face to face interviews are being carried out, without any prior notice given that Zimbabwean Embassy officials will be present.

Prior to the nationality interview taking place, Home Office Minutes/Case Notes will usually have recorded as follows:

“Criminal Casework Review

ETD IS THE CURRENT BARRIER TO REMOVAL

Returns to Zimbabwe are starting to resume. Foreign National Offender to be considered for future interview scheme.

Currently appeal rights exhausted, holds original expired passport.

Compliant with reporting

Zimbabwe ETD Interview Scheme

This case has been included on the Interview Scheme taking place at Becket House on 11/12/2019”

Following the nationality interview, all that the  Home Office Minute/Case Notes will record is the following:

“ZWE ETD Interview Scheme

Subject was interviewed by ZWE official at Beckett House RC on 11/12/2019.

CID will be updated when an outcome is received”.

No written record of that interview, or what was asked by the Embassy official and the returnee’s responses will be volunteered by the Home Office within the disclosed Subject Access Request outcome.

ETD Application Checklist

The Home Office appear to have an ETD document Checklists and that from Criminal Casework  Leeds is to the following effect:

  • Detention status? Released- – Subject reports every month on the 20th  at Becket House.
  • Current case status? Subject has been issued with a notice of Deportation order, and  his appeal was refused in 2017.
  • Have you checked to see if there are any outstanding applications/barriers to removal?
  • New photographs included and uploaded to CID? If not taken within last 6/12months  please
  • Has CID been checked to confirm whether a travel document is held or has previously been requested?
  • Has CID been checked for landing card  details?
  • Have all files been checked for Foreign National Offender’s original/copy of passport or evidence of identity or nationality?
  • Have CRS checks been done & included  where relevant?
  • Have the Foreign National’s fingerprints been taken?
  • If applicable, have the pre-verification checks been carried out through the RLO & are the results attached?
  • Has a negative immigration decision been served?
  • Have you confirmed that there is no evidence on file to indicate the Foreign National Offender has a fear of return to their own country, which has not been considered?
  • Have you confirmed  there is no ( implied) mention of asylum in ETD application?***
  • Have the correct travel document forms been completed?
  • Do the biodata  & other relevant forms state the correct Home Office reference, name, nationality, aliases, place and date of birth, last address in the country of origin, passport details?
  • Have all details been checked & verified  on internet, ie schools, hospitals etc?
  • Have you provided any other country specific nationality forms?
  • Do we have supporting evidence of identity/ nationality for the Foreign National Offender, ie passport, birth certificate, ID card?
  • Have files of family members been obtained and checked?
  • Do we have any supporting evidence for family of identity/nationality passport, birth certificate, ID card?
  • Has any supporting evidence been translated?
  • Have the minimum requirements for travel document as per nationality been completed?
  • Submission letter completed  correctly?
  • Country Guidance printed and attached to checklist?
  • Does the application need sending to Returns Logistics or mission?
  • Does the Foreign National Offender need an interview?

Note, the question: Have you confirmed there is no ( implied) mention of asylum in ETD application?

The Home Office will of course  indicate in the Checklist that there is no such mention however the underlying issue, self-evidently, even in the absence of documentation or information within the disclosed file, will be whether it is possible  to mount a fresh claim for asylum  on the basis that by her own actions, the Secretary of  State, in inviting  an official from the Zimbabwean Embassy to an interview  at the Home Office, might have brought an applicant to the direct adverse  attention  of the Zimbabwean authorities.

Submission letter to the Zimbabwean Embassy

The Home Office will need to send the submission letter to the Embassy with the ETD application and such letters are written as below:

Returns Logistics ( RL)

Immigration Enforcement

15th Floor, Lunar House

40 Wellesley Road

Croydon

CR9 2BY

Tel: +44(0) 208 196 0151

Zimbabwe House

429 Strand

London

WC2R 0JR

Application for a travel document- Non detained

Applicant’s Name: Ms Salllle Alllle

Date of Birth:00/00/1900

Our Reference: A0000000

The above named does not have/qualify for leave to enter or remain in the United Kingdom, does not hold a valid travel document and authority to remove them from the United Kingdom has been granted.

 Please find enclosed a travel document application. I would be grateful if you would issue a travel document as soon as possible so that the Home Office can arrange removal.

Should you require any further information, the contact details and telephone number for the Returns Logistics unit are at the top of this letter. Please do not hesitate to contact us.

Yours Faithfully,

Country Manager

Country Returns, Operations and Strategy

Bio Data Information

The Bio Data Information contains responses to the following questions:

  • Home Office reference number
  • Port Reference Number
  • Family name
  • Nationality
  • Other names
  • Male or Female
  • Date of birth
  • Place of birth
  • Nationality
  • Last known address in country of origin: Telephone number
  • Passport number
  • Issuing Government or Authority
  • Place of Issue
  • Date of Issue
  • Valid until
  • Mother’s name
  • Place of birth
  • Mother’s maiden name
  • Nationality
  • Address
  • Father’s name
  • Place of birth
  • Date of birth
  • Mother’s maiden name
  • Nationality
  • Address
  • Last employer in country  of origin
  • Address
  • Date of employment
  • Schools attended in country of origin
  • Name and address of family doctor
  • Name and address of place of worship
  • Name and address of local police stations
  • Name and address of local hospitals

Documents Submitted to Zimbabwe House

As per  the Country returns guide: February 2020,  the following minimum requirements in relation to an application for an ETD are:

  • submission letter
  • bio-data form
  • 4 photographs of passport standard, cut to size
  • supporting evidence, if available
  • full UK birth certificate must be provided for children born in the UK  
  • all supporting evidence accompanying an travel document must be translated into English
  • Fee £80. To be submitted to RL team 1, 15th Floor Lunar House

The Home Office will submit the ETD application to the Zimbabwean Embassy with the above mentioned submission letter.

Home Office Minutes/Case Notes will usually record as follows in this regards:

“ETD pack checked contains submission letter, interview letter, photos, bio data, copy of passport”.

Subject Access Request: absence of relevant disclosure

The online subject access request form requires clarification of the purpose for which  disclosure is required.  

A suggested format to be improved upon, may state the purpose as below:

“To ascertain whether Home Office actions  have placed the Applicant at risk and/or breached his confidentiality. All communication to and from the Home Office and the Zimbabwean Embassy authorities in relation to this Applicant. All interview records and Minutes/Case Notes as regards the meeting of 11 December 2019 between the Applicant and Zimbabwean Embassy Officials. Minutes/Notes/communication between the Embassy and Home Office & between Home Office staff  after 11 December 2019 are also required”.

As above, the Home Office will likely not volunteer disclosure of an interview record or Minute/Case Notes in relation to the face to face interview with the Embassy official. Apart from the submission letter to the Embassy, neither will they likely offer any other documentary communication  that may exist between the Home Office and  the Zimbabwean Embassy before or after the nationality  interview. The ETD Agreement received will also likely not be disclosed.

Instead the Home Office may respond as follows:

 “Unfortunately, there were no records of the minutes of and after the meeting of 11 December 2019 with the Zimbabwean Embassy on our file”.

In  the absence of the requested documentation and information, it is not apparent how such a  response can be  relied upon to sustain a position that  there has been no mention(implied) to the Zimbabwean Embassy of an asylum or other breach during the travel document application process.

If not satisfied with the response to the Subject Access Request, consider writing to the following address within 3months, expressing dissatisfaction with the response:

Customer Service Team

Subject Access Request Unit

UKVI, 11th Floor

Lunar House

40 Wellesley Road

Croydon, CR9 2BY                                                            

Additionally, consider sending a complaint to the Home Office Complaints Unit.

Where relevant disclosure is still not forthcoming, send a letter before claim setting out reasons why judicial review action is appropriate in the circumstances.

Is there really a secret UK Government Immigration Amnesty in operation for the undocumented? If not,what are my options?

“I am sorry, there is no published immigration amnesty so far as I am aware”, says the immigration lawyer, for the third time, during the 12minute call.

“But my friend, he says there is a secret amnesty by the government, the government does not want all people to know about it, my friend applied months ago under the amnesty and he now has a visa, he is not the only one, he is already working ”,  repeats the Caller.

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Automatic/Blanket Zambrano refusals: FTT Judge finds amended Zambrano Guidance an inaccurate reflection of the 2016 EEA Regulations

Following the Supreme Court Judgement in Patel v Secretary of State for the Home Department [2019] UKSC 59 (16 December 2019), Home Office Policy Guidance, Derivative rights of residence, published on 2nd May 2019 should no longer continue  in existence in the public domain in its current form.

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